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For people with criminal records
For people with criminal records

Archives: Case Studies

Andy – Failings in the DBS eligibility investigation process meant that an ineligible check was carried out leading me to resign from my job

Andy contacted our helpline for some advice after his employer, a local council, had requested an enhanced Disclosure and Barring Service (DBS) check for his role working as an apprentice in their Revenue Office. Andy explained that he had no face to face contact with clients, answering all enquiries over the telephone and believed that his job would be covered by the Rehabilitation of Offenders Act.

As his conviction from about 7 years ago was spent (under the Rehabilitation of Offenders Act 1974) and wouldn’t appear on a basic (DBS) check, Andy was keen that his employer carried out this level of check.

We advised him to agree to the enhanced check and confirmed that we would raise it on his behalf as an eligibility query with the DBS. On contacting the DBS we were told by their customer service department that eligibility queries had to be raised with the registered body (RB) responsible for processing the check. Despite explaining that the applicant did not wish to contact the RB and alert them to the fact that he may have a criminal record, the customer service advisor confirmed that there was no other way of querying a check.

We alerted the DBS policy department who responded with the following:

 

“I have contacted customer services regarding this application, which will be put on hold while the eligibility is investigated. DBS will need to see the job description and discuss with the RB. We won’t let the RB know it’s the applicant that’s querying eligibility.

 

The email chain has been forwarded to customer services managers to make sure all staff are aware of the appropriate processes when dealing with potentially ineligible applications”.

 

Despite the application being put on hold, Andy heard nothing further from the DBS until he received his enhanced DBS check in the post and was asked by his employers to hand it over as they had been made aware by the RB that it had been produced.

We raised this issue with the DBS policy department who were keen to investigate the failings that had occurred within their system.

A week later, Andy contacted us again and stated that as his employer had been made aware that the check had been completed, they were putting him under a lot of pressure to hand his certificate over to them. This was causing Andy a lot of anxiety and he eventually decided that the only option open to him was to resign from his job at the council.

Andy has subsequently applied for the same job at a neighbouring council and has been successful. His new employer has requested a basic (DBS) check.

 

Lessons

This case demonstrates some of the failings we’ve identified in the processing of criminal record checks by the DBS. In this case, the DBS customer service department were not clear about their own process for querying eligibility which led to a check being undertaken which had been put on hold.

We have raised this case, alongside other similar ones, with the DBS and recommended that they carry out a review of their ineligible check query process.

Links

Notes about this case study

This case study relates to Unlock’s casework.

Names and details have been changed to protect the identity of those involved.

Helping a housing provider make sure they don’t consider spent convictions

A few years ago a member of staff of a housing provider who had attended one of our training courses forwarded us a copy of their organisation’s housing allocations policy and application forms. As a result of the training they’d received, they were concerned that their documentation may not be compliant with the Rehabilitation of Offenders Act 1974 (ROA) and asked us to review and make any recommendations we felt necessary.

We noted the following:

  1. Neither the application/allocation policy nor the application form made any reference to the Rehabilitation of Offenders Act and the fact that spent convictions should not be disclosed by an applicant or taken into account when considering an applicant for housing.
  2. The question on the accommodation application form asked: “Do you/the applicant have an offending background?  Yes/No”

We explained to the housing provider that we felt that the wording on the application form was misleading and meant that an applicant may disclose something that they were not legally obliged to do. This in turn could result in their spent conviction being relied upon by the housing provider when making a housing decision.

The provider was surprised by our findings but immediately amended their forms and policy documents.

A section was added to their application/allocation policy, namely “Applications for those with criminal convictions” which stated that only unspent convictions would be considered as part of the application process.

The accommodation application form made it clear that only unspent convictions needed to be disclosed. The question now read:

 

“Do you/the applicant have any unspent convictions?  Yes/No”

 

Lessons

This case demonstrates that whilst organisations may believe they are complying with the law around disclosure of criminal records, many are not, and may be holding information that they are not legally entitled to.

Notes about this case study

This case study relates to our work with other organisations.

Names and details have been changed to protect the identity of those involved.

 

Ray – Granted a 10-year visa to travel to the US

Ray contacted our helpline for some advice regarding travel to the US.

In 2011 Ray had been convicted of 3 minor offences and having decided to visit the US for a holiday, he sought some advice from an immigration solicitor about whether he would be allowed to visit as he’d heard that anybody with a criminal record wouldn’t be able to go to the US. His solicitor told him that he would need to apply for a visa which he duly did and was given an appointment for an interview at the US Embassy.

However, in readiness for the interview Ray started doing further research and began to think that he had been given incorrect advice by his solicitor and that his offences would not be classed as crimes involving moral turpitude (CIMT). On this basis, he applied for an ESTA and was approved.

Ray wanted to know whether he should go ahead and travel on the ESTA rather than attend the interview at the Embassy. He was concerned that US immigration would have access to the information he had disclosed on his DS-160 application and would refuse him entry when he arrived in the States or worse still, prosecute him for travelling without a visa.

We were unable to confirm whether there was any link between the ESTA and the visa process but we felt that it was entirely possible that this could be the case. From the information provided, we didn’t believe that his offences were crimes involving moral turpitude and it was therefore more than likely that he would be granted a visa if he attended an interview at the Embassy. If he was refused, there was an appeals process that he would be able to go through.

We provided Ray with some further information on what he should cover at the interview to improve his chances of success.

We followed up with Ray several months later who told us that he’d taken our advice and attended the interview at the Embassy. He’d explained to the Consular Officer that he didn’t believe his offences were crimes of moral turpitude but he thought it was important to be upfront and honest and wanted to go through the visa process to be sure that he was doing the right thing.

After consideration, Ray was granted a 10-year visa.

 

Lessons

There is a lot of misleading information online about travelling abroad, especially to the US and unfortunately, the US Embassy don’t provide a definitive guide to who is likely to get a visa.

Ray’s case highlights how being upfront and honest and going through the visa process has paid off and has resulted in him being immediately granted a ten year visa.

Links

Notes about this case study

This case study relates to Unlock’s Helpline.

Names and details have been changed to protect the identity of those involved.

Richard – Previous employer disclosing a conviction in a reference

Richard contacted our helpline for some advice following a request he’d made to his previous employer for a reference. He’d worked for them for almost 20 years and his advisor at the job centre suggested that getting their agreement to provide a reference would help him when filling out job application forms.

His previous employers had confirmed that although they were happy to provide a reference which was factually accurate, it would be on the basis that they would also set out the details of his conviction. Richard wanted to know whether his previous employer was entitled to disclose this in a reference.

We were able to advise that Richard’s previous employer would be unlikely to be able to include details of his conviction in any reference unless they had received his explicit consent to do so. We explained that as the Data Protection Act classes criminal convictions as ‘sensitive personal data’ then it needed to be treated with greater care than other personal data as it could potentially be used in a discriminatory way.

We advised Richard to contact his previous employer and explain that:

  • As they had always provided a reference to previous employees this led him to believe that he had grounds to claim a reference
  • The law states that any reference must be ‘fair, truthful and accurate’
  • He refused to give explicit consent for details of his conviction to be disclosed and that he would claim compensation from them due to a breach of the Data Protection Act if they proceeded to disclose information.

In addition to contacting our helpline, Richard also spoke to the Information Commissioners Office who confirmed that where sensitive personal data was concerned then many conditions needed to be met when an organisation processes this type of data. In their opinion, it was unlikely that Richard’s previous employer would be able to meet these conditions.

Richard got back in touch with us several weeks later and confirmed that having a better understanding of his previous employers responsibilities enabled him to challenge their decision to disclose details of his conviction in any reference they provided.

His employers have now provided him with a reference stating only that during the time he’d worked for them he had demonstrated the necessary skills to undertake the job he was employed to do.

 

Lessons

This case shows that employers can be confused about what information they can include in a reference with many believing that they have a ‘duty’ to disclose details of a criminal record if they know about it. However, as can be seen the ICO are very clear about the conditions which need to be met before this type of data can be disclosed and the consequences for the employer if they chose to do so.

Being very clear about what his previous employer was entitled to disclose gave Richard the confidence to challenge them over this.

Links

Notes about this case study

This case study relates to Unlock’s helpline.

Names and details have been changed to protect the identity of those involved.

Penny – Potential barring after an ineligible DBS check and a 33-year old historic ‘love bite’

Penny contacted our helpline for some advice after her employers, a local council, had requested an enhanced Disclosure and Barring Service check for a new role in a different department which Penny believed would only be eligible for a basic check. Her job involved dealing with complaints from local residents relating to environmental issues and very occasionally she would be required to visit residents at home to gather additional information. Her manager had told her that:

‘Although you work with adults in the community you might have to go into their homes to complete assessments and as they may have children we’ve ticked the adult and child workforce box on the DBS application form.’

Approximately one month after the DBS application form was submitted, Penny was contacted by the DBS who informed her that as a result of her conviction and working in regulated activity, they were considering including her on the adult and children’s barred list.

Penny told us that her conviction had occurred 33 years ago when she was 17. She was in a relationship with another 17-year old and she said she “gave her a love bite” – she was convicted of indecent assault and received a 2-year probation order. Since then she had studied for a degree and had worked for many years in management positions within local government. Although she’d had many enhanced DBS checks carried out over the years, she had never been put on a barred list or even considered for inclusion on one. Penny told us:

‘I can’t believe that having worked for the council for nearly 20 years and having had lots of DBS checks, I might now be put on a barred list.’

We advised Penny that in our opinion, her job would not be eligible for an enhanced check as it did not involve teaching, training, supervising, advising, treating/transporting or caring for children or vulnerable adults and did not require her to go into a resident’s house for 4 or more days in a 30 day period.

We suggested to Penny that the first thing she should do would be to raise an eligibility query with the DBS. If the DBS agreed that the check was ineligible and she would not be working in regulated activity, then there would be no reason to consider her for barring.

Before contacting the DBS, Penny spoke to the council’s HR department highlighting her findings around eligibility. Using the information provided by us and the DBS tool checker, the council agreed that Penny’s role was not eligible for an enhanced check and withdrew the application.

Using the confirmation that the DBS application had been withdrawn, Penny was able to provide this as evidence to the DBS barring department that she would not be working in regulated activity and that she should not be added to either the children’s or adult’s barred list. After verifying the information that she had provided and gathering further evidence the barring department confirmed that Penny wouldn’t be barred from working with children and adults.

Penny said:

“I’m over the moon and extremely satisfied with the outcome. If it wasn’t for the advice and support I received from Unlock I don’t know what I would done. I can’t thank you enough for all your advice and help.”

 

Lessons

As Penny’s case demonstrates the impact of an employer carrying out an ineligible check can have huge consequences for individuals. Had Penny not raised this issue with her employer then potentially they would be aware of details of her criminal record which legally they weren’t entitled to know. Not only that but she could have been added to the children’s and adult’s barred list indefinitely.

It also raises questions about how the DBS decides whether it is thinking about barring somebody as a result of a historic conviction.

Links

Notes about this case study 

This case study relates to Unlock’s case work.

Names and details have been changed to protect the identity of those involved.

Case of Larry – Two conditional discharges first causing problems 40 years later

Larry only became aware that he had two offences on his record when he reached the age of 60 and needed an enhanced Disclosure and Barring Service check to volunteer with his son’s choir.

When he was 16, Larry was convicted of possession of marijuana and received a one year conditional discharge. He wasn’t a habitual drug taker but had been arrested whilst he was making a purchase from a dealer that the police had been looking to trap.

A couple of years later whilst he was a student, Larry received a further one year conditional discharge for theft after taking an item of food from a warehouse where he was working part-time as a shelf stacker.

After graduating, Larry went on to work very successfully for over 40 years in the private sector and has had a completely clean record since his last conviction.

When he went to court decades ago, Larry’s solicitor had explained to him that a conditional discharge was not classed as a conviction (it would only be dealt with in this way if it was breached) and would have little impact on him. So he wasn’t concerned when he was asked to have a DBS check carried out by his son’s choir and even less so when he read that certain convictions would be eligible for filtering after 11 years.

When he received his DBS certificate showing the two convictions he immediately contacted our helpline. We unfortunately had to explain to Larry that, for the purposes of filtering at least, a conditional discharge is dealt with as a conviction and, for it to be eligible for filtering, there must only be one listed. Therefore, in Larry’s case his offences would always be disclosed on standard and enhanced DBS checks as the system stands.

As the choir had made it clear that they required a ‘clean’ DBS certificate, and because Larry did not want to cause his son any unnecessary embarrassment, he did not pursue his application with them.

Larry stated:

“When you look at my record, it’s dreadful. But I was never the drug taking thief that it suggests – I was a young person who made a couple of silly mistakes. But it’s harder than you would ever believe to correct the impression this record creates, even though no one apart from me knows or should care about what happened over forty years ago”.

Knowing that these convictions will appear on a DBS certificate has had a huge impact on Larry. He has stopped applying for positions that require these types of check as he believes that he will never be offered a role in an organisation that does them and also, he finds it difficult to explain the mistakes he made as a juvenile.

Although grateful that the Government have introduced a system of filtering, Larry doesn’t believe that it goes far enough. He said:

“We have lost faith in the capacity of people to learn from their mistakes and to change for the better. The present system is preventing people like me from participating”.

Commenting on Larry’s experience, Christopher Stacey, co-director of Unlock said:

“Why on earth is our criminal record disclosure system holding people like Larry back? Two conditional discharges from over 40 years ago have no bearing whatsoever on the type of person someone is today. The fact that some organisation still insist on “clean” checks is a further damning indictment on today’s risk-averse world, but people like Larry shouldn’t even be put in this position in the first place – it’s disproportionate for the current system to continue to disclose these types of offences and it needs to change”.

 

Notes about this case

  1. This case relates to Unlock’s policy work on challenging the DBS ‘filtering’ process.
  2. We have practical guidance on disclosing criminal records to employers.
  3. Names and details have been changed to protect the identity of those involved.
  4. Other policy cases are listed here.

Case of Kate – Qualified to work but old convictions are the barrier

At the age of 16, Kate took the decision to move out of her family home and began renting a room from somebody she’d met through a friend. After she’d been there for three months and, without any warning, she returned home from college to find that her landlady had thrown the majority of her possessions out of the house and onto the street.

Realising that not all of her possessions had been returned, Kate went back to the house to pick them up. This resulted in an argument with her former landlady and Kate leaving empty handed after the landlady started to physically attack her. Several days later her parents received a phone call from the police asking Kate to report to the police station as soon as possible.

Kate said:

“My father accompanied me but was not allowed in the interview room. We asked if I needed legal representation and was advised by the policeman that I would get home a lot quicker without it and that it wasn’t necessary. I gave the police a detailed and honest account of events but it was apparent that the woman whose room I had rented had not and I was subsequently arrested for common assault”.

In court Kate was found guilty of using violence to enter the premises and battery and had to pay compensation of £100.

That was over 10 years ago now. Since then, Kate has successfully completed a degree in social work at university. She has applied for several social work positions and been invited to interviews where she has been told that she was an outstanding candidate and been offered the job. However, as her convictions do not meet the eligibility for filtering (she has two) every job offer has been revoked as soon as she has disclosed her convictions.

Kate stated:

“I have two offences as part of one conviction which would be eligible for filtering if the system wasn’t limited to one conviction/offence. I want to work, I’m able to work, I miss working”.

Commenting on Kate’s experience, Christopher Stacey, co-director of Unlock, said:

“The fact that someone has two offences on their record should not be an automatic bar to them being filtered by the DBS. The ‘one conviction’ rule is a blunt instrument and it needs to be scrapped”.

 

Notes about this case

  1. This case relates to Unlock’s policy work on challenging the DBS ‘filtering’ process.
  2. We have practical guidance on disclosing criminal records to an employer.
  3. Names and details have been changed to protect the identity of those involved.
  4. Other policy cases are listed here.

Case of Hilary – Reliving old convictions stops people from pursuing their dreams

When she was 19, Hilary was found guilty of possession of a prohibited weapon and prohibited ammunition after her then boyfriend forced her to hide them in her handbag as they travelled in a car together and were pulled over by the police. When the case went to court, she received a 2 year conditional discharge.

At the time of going to court, Hilary had been studying for a law degree but believed that as a result of her criminal record she would find it difficult to convince the Law Society that she would be a suitable candidate to enter the legal profession.

After eight years of moving from one mediocre job to another, Hilary took a short course in counselling skills and realised that she wanted to undertake further study in this field. However, she was worried that she could potentially be wasting time, effort and money if her conditional discharge meant that she would never be allowed to practise.

Another ten years passed before the filtering provisions were introduced in May 2013. Hilary believed that her conditional discharge would be eligible for filtering and contacted the Disclosure and Barring Service to find out whether she needed to make a request in writing. The DBS explained that although her offence was likely to be eligible for filtering, and although it resulted in a conditional discharge and not a conviction, this would be treated as multiple offences. They also confirmed that conditional discharges were treated as convictions for the purposes of filtering, so they wouldn’t be filtered.

Hilary stated:

“I continue to study but I do worry that I may just be wasting my time and will be left disappointed again. There are job opportunities that I just allow to pass me by without even trying because of my belief that I will be judged and discriminated against. I hate having to relive my conviction every time I attend a job interview. I really wish the filtering system could be reformed to allow people like me the chance to move on from their past and not be haunted by it every time the opportunity to pursue a dream job comes up”.

Commenting on Hilary’s experience, Christopher Stacey, co-director of Unlock, said:

“This incident was nearly 20 years ago now. That she was charged with two offences for one set of behaviour should not stop it from being filtered. A conditional discharge is not a criminal conviction, and so it should be treated differently. The fact that these offences still appear on her enhanced DBS shows the filtering system is in desperate need for reform”.

 

Notes about this case

  1. This case relates to Unlock’s policy work on challenging the DBS ‘filtering’ process.
  2. We have practical guidance on disclosing criminal records to an employer.
  3. Names and details have been changed to protect the identity of those involved.
  4. Other policy cases are listed here.

Case of Diana – Disclosure of convictions from 25 years ago threaten chances of fostering

Whilst she was still at school, Diana was convicted of seven counts of theft from the school changing room and was sentenced to a 12 months conditional discharge and fines ranging from £1 to £14. Up until then, her childhood had been very chaotic having been taken into local authority care following regular abuse and neglect at the hands of her father. Desperate to make friends and fit in at school, Diana had committed her offences as a result of bullying and peer pressure.

She was told by her solicitor that, as she was a juvenile at the time of her convictions, she wouldn’t need to disclose them to anybody providing she did not re-offend. She was never made aware of any exceptions and for that reason, hadn’t declared it for 25 years.

Diana was eventually fostered by a wonderful couple and began to turn her life around. She gained two degrees and worked very successfully with elderly people in the care industry and schools. The only time she was asked to disclose her criminal record was when applying for a personal licence to manage a nightclub – although the police later told her that as her convictions were spent, she hadn’t need to tell them.

Now married with two children, Diana recently applied to do some voluntary work at her children’s school. She agreed to an enhanced Disclosure and Barring Service check but was devastated to see that all seven of her convictions had been disclosed on it. Worried about how this would be viewed by the school, Diana withdrew her application.

At around the same time Diana and her husband had started the process of fostering and although they knew that the fostering agency would need to do a criminal record check, Diana had been unaware of the information that would be disclosed about her. She started to research the filtering legislation that had come into force in May 2013 and realised that although a theft offence would be eligible for filtering, the fact that she had seven convictions (one for each of the seven items she had stolen) meant that hers would not be.

Diana now believes that the presence of these convictions on her criminal record check is likely to close the door to any chance of her being a foster carer.

Diana stated:

“The current system does not take into account a person’s past or circumstances which led to their offending as a child – as a child we are all guilty of making mistakes, it’s part of the learning curve. Why make a definition between a juvenile and an adult in law if we are making a juvenile criminally responsible and liable for the whole of their lives. I can’t sleep, I feel so sick. I wake up crying and thinking about it, I’m totally ashamed and embarrassed about my past and having to relive something I thought I’d buried 25 years ago”.

Commenting on Diana’s experience, Christopher Stacey, co-director of Unlock, said:

“This shows how the current DBS filtering system, which only applies to single convictions, is a blunt instrument. The very fact that Diana’s minor theft offences are now more than 25 years old show that they are clearly no longer relevant for any kind of employment, volunteering or fostering. It provides a striking example of why the filtering regime needs to change”.

 

Notes about this case

  1. This case relates to Unlock’s policy work on challenging the DBS ‘filtering’ process.
  2. We have practical guidance on fostering.
  3. Names and details have been changed to protect the identity of those involved.
  4. Other policy cases are listed here.

Vince – theInformationHub provided me with an anonymous and easy way to get answers to my questions

Vince is extremely hard of hearing which can make it difficult for him to communicate with people especially on the telephone. He has found the situation is made worse when he has to listen to complex information or instructions. His friends are always happy to assist him and this generally works well.

Having successfully applied for and been offered a driving job, his new employers had asked him to give them access to his driving licence. Vince had been convicted of a drink driving offence in 2011 and was concerned that if it was disclosed on his licence, his employers would revoke the job offer. He was keen to find out what his employers would see but didn’t want to seek the help of his friends who knew nothing about his driving conviction.

As a result of a Google search, Vince came across our information site and was able to quickly establish that his conviction was spent under the Rehabilitation of Offenders Act. The site also explained that his conviction would remain on his driving licence for 11 years but, for the purposes of employment, he would be able to give his employers consent to access his licence via the DVLA Shared Driving Licence Service which would not disclose spent convictions.

Vince was reassured that he did not need to disclose his conviction to his employers and there was no way that they would find out from his licence.

Vince said:

“I was so pleased to have found Unlock’s information site which enabled me to find out what I needed to know without having to get my friends to ring up for me. I’ve used the site many times since and have already managed to secure a much cheaper insurance policy by using one of the brokers from Unlock’s list”.

 

Lessons

We sometimes forget how difficult it is to find information if you have any physical impairments or issues around literacy and numeracy. Unlock tries to help people in overcoming these barriers by providing a wide range of communication channels. In this case, Vince was able to find information himself without having to rely on friends/family. Individuals with literacy problems may prefer to telephone our helpline and speak to an advisor who can offer clear and concise answers over the telephone.

Links

Notes about this case study

This case study relates to our information site.

Names and details have been changed to protect the identity of those involved.

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